Health care debate reopens

Posted Fri, January 6th, 2012 6:52 pm by Lyle Denniston

Amid a flurry of data put before the Supreme Court to show that the uninsured are bogging down the entire health care system in America, the Obama Administration on Friday mounted a full-scale defense of the Affordable Care Act’s mandate that virtually every American must obtain health insurance by the year 2014, or pay a financial penalty. At the same time, the energetic challengers of the mandate sent the Court new briefs contending that the requirement is so seriously flawed that it should pull down the entire Act. “The Act was a grand bargain, with nearly every provision crucial to its success,” one of those briefs asserted. A variety of more than a dozen new filings were expected before midnight, Court aides said.

Friday was the deadline for the opening briefs on three of the four issues the Court has agreed to review on the new health care law, with further briefing due between now and mid-March, and with hearings to be held over a span of three days late that month. The federal government’s brief on the constitutionality of the insurance-purchase mandate is here. The brief of 26 states arguing that the mandate cannot be severed from the remainder of the law, so it all must collapse, is here. The brief of a business trade group making that same argument against severability is here. Still to be filed Friday evening was the brief of a Court-appointed Washington lawyer, to argue that the challenges to the mandate all were barred by the federal Anti-Injunction Act. (That brief, and others by amici joining in the case, will be posted when available.)

The first merits brief on the fourth issue — the constitutionality of the expanded Medicaid program for the poor — is due on Tuesday from the same 26 states that filed on Friday on the severability question.

The federal government’s brief, at an early point, sought to show that the insurance-purchase mandate (technically called the “minimum coverage” provision) was hardly a new idea when it finally got adopted in the ACA last year. In fact, the brief’s retelling of the history of attempts to reform health care, going back to Theodore Roosevelt’s time exactly a century ago, showed that it had become virtually routine for would-be reformers to work for “a system of social insurance” to protect against health hazards.

And, in an obvious attempt to dispel any notion that the Justices might have that the insurance-purchase mandate is a radical idea embraced only by the social engineers on the Left, that brief noted that, during the fight over President Clinton’s health care proposals in the 1990s, alternatives were put forth by such notable conservative organizations as the Heritage Foundation and the American Enterprise Institute, “both of which supported the mandatory purchase of private insurance so that the sale of insurance and delivery of health care would take advantage of private-sector market efficiencies.”

Such arguments, and the main points of emphasis made to news reporters Friday in a background telephone briefing by a “senior government official” on the new federal brief, were designed to keep the Court’s focus on the mandate as part of an overall reform to change the economic marketplace for health insurance, not to inaugurate a new system of socialized, government-controlled medicine. If insurers were to change their ways, and stop denying coverage to people just because they had a history of getting sick, the brief argued, it was completely necessary to shore up the financial base of the insurance industries by guaranteeing them the business of virtually every American.

Obama Administration officials clearly are aware that many skeptics as well as outright critics of the new mandate are wondering where such mandates might stop: for example, does the government have the power to order people to eat healthy vegetables, like broccoli? In fact, during the telephone briefing Friday, the overwhelming number of questions raised by reporters covering the Supreme Court case were about either “the broccoli question” or else a broader inquiry about what limits, if any, there were on Congress’s power to tell people how to run their private lives.

A couple of the reporters suggested that “the broccoli question” inevitably would come up in questions from the Supreme Court bench, and the government official (whose identity could not be revealed under the ground rules of the call) said it was simply irrelevant, because the Act and the mandate are simply attempts to use Congress’s undoubted power over interstate commerce to order different ways of operating the health insurance market.

It was also in the context of this commerce-regulating emphasis that the government brief launched a statistical barrage at the uninsured who inevitably will need medical care, but refuse to get insurance and thus live off the results of high premiums paid by others who do have such coverage. Most of the 50 million-or-so uninsured individuals in the nation, the brief stressed, “are not permanently” without health insurance. Instead, they move in and out of coverage.

Many do not have insurance because they can’t afford the premiums, not because they think they don’t need it, the brief said. Using data from 2008, the brief said that, as a group, the uninsured use about $116 billion in health care services in a year’s time, entering hospitals 2.1 million times, running up hospital bills as high as $22,200 on average, and go home without paying for $43 billion of the care they received. Who picks up that tab? The brief said that many hospitals and doctors pass on much of that cost to private insurers, which in turn raise their premium rates on those who had obtained insurance. That, it added, puts a $1,000-plus addition to the premiums paid by an average insured family.

The challengers to the insurance-purchase mandate are to file their briefs on February 6, with the government reply due March 7.

The fate of the mandate is tied very closely to two of the other issues the Court is considering. One is whether any challenge to that provision was barred by the federal Anti-Injunction Act, on the theory that the mandate is part of the federal tax code and the AIJ forbids anyone from suing to stop enforcement of a tax provision, whether it is called a “tax” or a “penalty.” Because neither the government nor the challengers to the mandate believe that the AIJ does bar such challenges, the Court has appointed Washington attorney Robert A. Long to make an argument that it does. His was one of the briefs expected to reach the Court late Friday.

The other issue that depends upon what the Court decides about the mandate is whether, if it is in fact struck down, any of the remainder of the entire health law can remain intact and working. The argument for nullifying the Affordable Care Act, in every part of its 2,700-plus pages, was made on Friday by the 26 states that succeeded in their challenge to the mandate in the Eleventh Circuit Court, and by the National Federation of Independent Business, a trade group, that had also taken part in the Eleventh Circuit. While voiding the mandate, the Circuit Court said all of the rest of the ACA could operate without it, and that is what Congress would have wanted.

Although the states will get a chance, in their response briefs to the government, to assail the mandate, their brief Friday on the severability issue amounted to a broad condemnation of the mandate, to set the stage for its conclusion that the ACA, end to end, depended upon it. The mandate, the brief argued, citing what lawmakers in Congress had said about it, was crucial to the basic goal that the legislation was written to pursue: virtually universal health care.

“Congress’s paramount goal,” the states contended,”was ‘near-universal’ health insurance coverage…, something it believed could be achieved only if each of the Act’s central provisions works in unison so that near-universal supply can meet the mandated near-universal demand.”

While the brief contended that it was clear that none of the “central provisions” of the Act could survive without the mandate, the brief moved beyond those provisions, and asserted that all of the rest would be orphaned without it. “Many of the several hundred provisions found elsewhere in the ACA do not bear as obvious of a relationship to increasing the demand for or supply of health insurance,” it conceded. Looked at more closely, however, those, too, are too closely linked to the mandate to exist without it. The other provisions are designed either to offset “the massive new spending generated by core provisions such as Medicaid expansion and the [health] exchanges, or to decrease the cost of the health care services that drive up the cost of insurance.”

The business federation, like the state challengers, used a considerable portion of its severability brief (the only issue it had raised in its own petition) to denounce the mandate, including arguments that it simply will not work as the governments contends that it will. For example, that brief attacked the government’s citation to $43 billion of health care that the uninsured get but do not pay for, saying that most of that figure “is attributable to people not affected by the mandate,” such as the poor, who get subsidized health care from the Medicaid and Medicare programs, those now without insurance who will use the opportunity provided by the Act to buy affordable insurance, aliens not subject to the mandate at all, and individuals who fail to pay the deductible amounts due when they receive health care.

“Thus,” the brief said, “the amount of uncompensated care even potentially attributable to individuals affected by the mandate is less than $8 billion, 0.33 percent of the $2.4 trillion health care market.” Even that figure, it added, is “substantially overstated.”

When the business brief turned directly to the severability issue, it contended that, “by any fair measure, the text, structure, and operation of the ACA — not to mention its tortured path through the legislative process — make it evident that, without the individual mandate at its heart, no statute remotely resembling the Act would or could have been enacted. Once the mandate is invalidated, the entire Act must fall with it.”

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.